Citation Nr: 0725174
Decision Date: 08/14/07 Archive Date: 08/20/07
DOCKET NO. 05-24 372A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to an increased rating for right knee Baker's
cyst, currently evaluated as noncompensably disabling.
2. Entitlement to an increased rating for status post
rupture, left rectus femoris (formerly rated as torn
Sartorius left leg muscle), currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
K. Curameng, Associate Counsel
INTRODUCTION
The appellant in this case is a veteran who had active duty
service from February 1969 to May 1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The veteran's notice of disagreement was received in
January 2004. A statement of the case was issued in June
2005, and a substantive appeal was received in August 2005.
The notice of disagreement received in January 2004 indicated
that the veteran requested a Board hearing at the local RO.
In his substantive appeal received in August 2005, the
veteran indicated by checking the appropriate box that he did
not want a Board hearing; however, in the same
correspondence, he added that it was his second request for a
hearing. The RO sent a letter in February 2006 asking the
veteran to clarify whether he wanted a Board hearing; he was
further informed that if he did not respond within 60 days
from the date of the letter, it would be assumed that he did
not want a hearing. To date, a statement was received in
January 2007 from the veteran's representative who did not
indicate otherwise. Accordingly, the Board finds that the
veteran has in effect withdrawn his request for a Board
hearing.
In the December 1990 rating decision, the RO granted service
connection for status post torn Sartorius left leg muscle and
assigned a 0 percent disability rating, effective June 1,
1990. In its February 2003 rating decision, the RO continued
the disability rating. However, in its November 2006
supplemental statement of the case and its October 2006
rating decision, the RO assigned a 10 percent disability
rating, effective July 26, 2002. Although an increased
rating has been granted, the issue remains in appellate
status, as the maximum schedular rating has not been
assigned. AB v. Brown, 6 Vet. App. 35 (1993).
FINDINGS OF FACT
1. The veteran's right knee Baker's cyst is manifested by
pain and stiffness at the extreme of flexion.
2. The veteran's service-connected status post rupture, left
rectus femoris (formerly rated as torn Sartorius left leg
muscle) is manifested by evidence of in-service treatment and
some loss of power.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a disability evaluation
in of 10 percent, but no higher, for right knee Baker's cyst
have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003
(2006).
2. The criteria for entitlement to a disability evaluation
in excess of 10 percent for status post rupture, left rectus
femoris (formerly rated as torn Sartorius left leg muscle)
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 4.56, 4.73, Diagnostic Code 5314 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). This legislation
provides, among other things, for notice and assistance to
claimants under certain circumstances. VA has issued final
rules to amend adjudication regulations to implement the
provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a). The intended effect of the regulations is to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
After reviewing the claims folder, the Board finds that the
claimant has been adequately notified of the applicable laws
and regulations which set forth the necessary criteria for
the benefit currently sought. The September 2004 and June
2005 VCAA letters effectively notified the veteran of the
evidence needed to substantiate his claim as well as the
duties of VA and the appellant in furnishing evidence. The
Board also notes that the September 2004 and June 2005 VCAA
letters notified the appellant of the need to submit any
pertinent evidence in the appellant's possession. He was
advised to submit information describing the additional
evidence or the evidence itself. The Board believes that a
reasonable inference from such communication was that the
appellant must also furnish any pertinent evidence that the
appellant may have.
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless. Although the
notice provided to the veteran in September 2004 and June
2005 were not given prior to the adjudication of the claim,
the notice was provided prior to recent certification of the
veteran's claim to the Board. The contents of the notice
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b). The claimant has been provided
with every opportunity to submit evidence and argument in
support of his claim, and to respond to VA notices.
Therefore, to decide the appeal would not be prejudicial to
the claimant.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id. at 486. Although the present appeal involves an issue of
entitlement to an increased rating, VA believes that the
Dingess/Hartman analysis must be analogously applied. In the
present appeal, the appellant was provided September 2004 and
June 2005 VCAA letters with notice of what type of
information and evidence was needed to substantiate the
claims for service connection. The veteran has also been
provided with a November 2006 notice of the types of evidence
necessary to establish a disability rating for his disability
claim and the effective date of the disability.
The Board further notes that the appellant's status as a
veteran has never been contested. VA has always adjudicated
his claims based on his status as a veteran as defined by
38 C.F.R. § 3.1.
Furthermore, the Board finds that there has been substantial
compliance with the assistance provisions set forth in the
law and regulations. The record as it stands includes
sufficient competent evidence. All available pertinent
records, in service and VA, have been obtained. Also, the
veteran was afforded VA examinations in July 2002, December
2002, and July 2006, and no further VA examination is
necessary. The Board finds that the record as it stands
includes adequate competent evidence to allow the Board to
decide the case and no further action is necessary. See
generally 38 C.F.R. § 3.159(c)(4). No additional pertinent
evidence has been identified by the claimant as relevant to
the issues on appeal. Under these circumstances, no further
action is necessary to assist the claimant with his claims.
Analysis
Disability evaluations are determined by the application of
the Schedule For Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4.
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior in undertaking the motion. Weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more or less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed injury,
as entitled to at least the minimum compensable rating for
the joint. 38 C.F.R. § 4.59.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more nearly approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Right Knee
The first appeal involves the veteran's claim that the
severity of his service-connected right knee Baker's cyst
warrants a higher disability rating.
The veteran's service-connected right knee Baker's cyst has
been rated by the RO under the provisions of Diagnostic Code
5299-5257 by analogy. Under this regulatory provision, a
rating of 10 percent is warranted where there is slight
recurrent subluxation or lateral instability of the knee. A
rating of 20 percent is warranted where there is moderate
recurrent subluxation or lateral instability of the knee. A
rating of 30 percent is warranted where there is severe
recurrent subluxation or lateral instability of the knee.
Normal flexion of the knee is to 140 degrees, and normal
extension of the knee is to 0 degrees. 38 C.F.R. § 4.71,
Plate II.
When the veteran was afforded an Agent Orange registry
examination in July 2002, he reported that from time to time,
he experienced swelling in his right knee, especially when
driving long distances.
VA medical records from December 2002 show that the veteran
reported knee pain that worsened with heavy lifting and going
up stairs. The veteran rated his pain between an 8 1/2 and 9
on a scale of 1 to 10. In addition, he reported arthritis in
the knees, joint pain, decreased range of motion, and use of
a cane when using the stairs. The veteran was diagnosed with
bilateral knee pain.
The veteran was afforded a VA examination in July 2006. He
reported pain in the back of the knee that occurred on a
daily basis, which went to the anterior portion of his knee.
He indicated that he felt pain in the posterior aspect of his
knee when he walked too much or when he climbed stairs. He
reported some instability three to four times monthly, but
never fell on his knee. The veteran took medications and had
a brace that he stated did not help. He further reported
flare-ups that caused an increase in symptoms during cold and
wet weather. His daily activities were affected depending on
how long he had to stand because increased standing increased
his pain.
Upon physical examination, the examiner noted that the
veteran flexed to 140 degrees and extended to -10 degrees.
He described the veteran's knee as a little bit stiff at the
maximum flexion of the knee. He noted that repeat flexion
and extension produced no indication of pain, weakness, or
fatigue. There was no tenderness or swelling around the
patella, medial or lateral aspect of the joint. It was
further noted that the veteran had no tenderness in the
posterior aspect of the joint. According to the examiner,
the veteran had no indication of a Baker's cyst in the right
knee. He further stated that the patella tracked in the
center sulcus. In addition, lateral and medical stress on
the knee showed no indication of laxity of the lateral and
medical collateral ligaments. The examiner continued that
the veteran had a negative anterior and posterior drawer sign
that indicated intact anterior and posterior cruciate
ligaments. He added that the veteran had a negative McMurray
sign.
July 2006 X-rays of the knee revealed no change since July
2002. It was noted that there was no acute fracture or
dislocations. There was some narrowing of the medial
patellofemoral joint with no other significant degenerative
changes or soft tissue abnormalities noted.
As noted previously, the veteran's service-connected right
knee Baker's cyst has been rated as noncompensably disabling
by analogy under the provisions of Diagnostic Code 5257,
which is based recurrent subluxation or lateral instability.
However, pertinent medical evidence showed no evidence of
recurrent subluxation or lateral instability to warrant a
compensable rating under this diagnostic code.
Nevertheless, the evidence establishes that there are
degenerative changes of the veteran's right knee, and that
the veteran has periarticular pathology. Specifically, July
2006 X-rays revealed narrowing of the medical patellofemoral
joint, which is indicative of arthritis. Degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic code(s) for the specific joint(s) involved. When,
however, the limitation of motion of the specific joint(s)
involved is noncompensable under the appropriate diagnostic
code(s), a 10 percent rating is for application for each such
major joint or group of minor joints affected by limitation
of motion, to be combined, not added under Diagnostic Code
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm or satisfactory
evidence of painful motion. In the absence of limitation of
motion, a 10 percent evaluation is warranted if there is X-
ray evidence of involvement of two or more major joints or
two or more minor joint groups and a 20 percent evaluation is
authorized if there is X-ray evidence of involvement of two
or more major joints or two or more minor joint groups and
there are occasional incapacitating exacerbations. 38 C.F.R.
§ 4.71a, Diagnostic Code 5003.
In addition to degenerative changes of the veteran's right
knee, the evidence also establishes that he has painful
motion and stiffness at the extreme of flexion. Under the
circumstances, at least the minimum compensable evaluation
for the joint is warranted. 38 C.F.R. § 4.59. The Board
therefore concludes that a 10 percent evaluation is warranted
for the veteran's right knee disability.
There is no basis for assignment of an additional rating
under any other applicable criteria. Diagnostic Code 5260 is
not for application since flexion does not approximate
limitation to 45 degrees. There is no evidence of dislocated
semilunar cartilage with frequent episodes of "locking,"
pain, and effusion into the joint to warrant a 20 percent
rating under Diagnostic Code 5258. There is also no
supporting evidence of any limitation of extension.
Diagnostic Code 5261 is therefore not applicable. There is
no evidence of ankylosis to warrant application of Code 5256,
and the record does not show nonunion of the tibia and/or
fibula or malunion of the tibia and/or fibula with knee
disability. There is therefore no basis for a rating under
Code 5262. Further, Diagnostic Codes 5259 and 5263 are not
for application since the medical evidence does not show
symptomatic removal of semilunar cartilage and genu
recurvatum, respectively.
The Board has considered whether the veteran has functional
loss due to pain and weakness causing additional disability
beyond that reflected on range of motion measurements.
DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the July
2006 VA examination showed that repeat flexion and extension
produced no indication of pain, weakness, or fatigue.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the
service connected right knee Baker's cyst has resulted in
marked interference with employment or necessitated frequent
periods of hospitalization. Under these circumstances, the
Board finds that the veteran has not demonstrated marked
interference with employment so as to render impractical the
application of the regular rating schedule standards. In the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
Left Rectus Femoris
The veteran's service-connected status post rupture, left
rectus femoris (formerly rated as torn Sartorius left leg
muscle) has been rated as 10 percent disabling under the
provisions of Diagnostic Code 5314. Diagnostic Code 5314
provides evaluations for disability of muscle group XIV. The
function of these muscles are as follows: Extension of knee
(2, 3, 4, 5); simultaneous flexion of hip and flexion of knee
(1); tension of fascia lata and iliotibial (Maissiat's) band,
acting with XVII (1) in postural support of body (6); acting
with hamstrings in synchronizing hip and knee (1, 2). The
muscles include the anterior thigh group: (1) Sartorius, (2)
rectus femoris: (3) vastus externus; (4) vastus intermedius;
(5) vastus internus; (6) tensor vaginae femoris. Under this
regulatory provision, a rating of 10 percent is warranted for
moderate injury. A 30 percent rating is warranted for
moderately severe injury. A maximum 40 percent rating is
warranted for severe injury.
Under DC 5301 through DC 5323, disabilities resulting from
muscle injuries are classified accordingly:
Moderate disability of muscles--(i) Type of injury. Through
and through or deep penetrating wound of short track from a
single bullet, small shell or shrapnel fragment, without
explosive effect of high velocity missile, residuals of
debridement, or prolonged infection. (ii) History and
complaint. Service department record or other evidence of
in-service treatment for the wound. Record of consistent
complaint of one or more of the cardinal signs and symptoms
of muscle disability as defined in paragraph (c) of this
section, particularly lowered threshold of fatigue after
average use, affecting the particular functions controlled by
the injured muscles. (iii) Objective findings. Entrance and
(if present) exit scars, small or linear, indicating short
track of missile through muscle tissue. Some loss of deep
fascia or muscle substance or impairment of muscle tonus and
loss of power or lowered threshold of fatigue when compared
to the sound side.
Moderately severe disability of muscles--(i) Type of injury.
Through and through or deep penetrating wound by small high
velocity missile or large low-velocity missile, with
debridement, prolonged infection, or sloughing of soft parts,
and intermuscular scarring. (ii) History and complaint.
Service department record or other evidence showing
hospitalization for a prolonged period for treatment of
wound. Record of consistent complaint of cardinal signs and
symptoms of muscle disability as defined in paragraph (c) of
this section and, if present, evidence of inability to keep
up with work requirements. (iii) Objective findings.
Entrance and (if present) exit scars indicating track of
missile through one or more muscle groups. Indications on
palpation of loss of deep fascia, muscle substance, or normal
firm resistance of muscles compared with sound side. Tests
of strength and endurance compared with sound side
demonstrate positive evidence of impairment.
Severe disability of muscles--(i) Type of injury. Through
and through or deep penetrating wound due to high-velocity
missile, or large or multiple low velocity missiles, or with
shattering bone fracture or open comminuted fracture with
extensive debridement, prolonged infection, or sloughing of
soft parts, intermuscular binding and scarring. (ii) History
and complaint. Service department record or other evidence
showing hospitalization for a prolonged period for treatment
of wound. Record of consistent complaint of cardinal signs
and symptoms of muscle disability as defined in paragraph (c)
of this section, worse than those shown for moderately severe
muscle injuries, and, if present, evidence of inability to
keep up with work requirements. (iii) Objective findings.
Ragged, depressed and adherent scars indicating wide damage
to muscle groups in missile track. Palpation shows loss of
deep fascia or muscle substance, or soft flabby muscles in
wound area. Muscles swell and harden abnormally in
contraction. Tests of strength, endurance, or coordinated
movements compared with the corresponding muscles of the
uninjured side indicate severe impairment of function. If
present, the following are also signs of severe muscle
disability: (A) X-ray evidence of minute multiple scattered
foreign bodies indicating intermuscular trauma and explosive
effect of the missile. (B) Adhesion of scar to one of the
long bones, scapula, pelvic bones, sacrum or vertebrae, with
epithelial sealing over the bone rather than true skin
covering in an area where bone is normally protected by
muscle. (C) Diminished muscle excitability to pulsed
electrical current in electrodiagnostic tests. (D) Visible or
measurable atrophy. (E) Adaptive contraction of an opposing
group of muscles. (F) Atrophy of muscle groups not in the
track of the missile, particularly of the trapezius and
serratus in wounds of the shoulder girdle. (G) Induration or
atrophy of an entire muscle following simple piercing by a
projectile. See 38 C.F.R. § 4.56.
The Board notes that various service medical records show
that the veteran was treated for, but never hospitalized, for
the injury to his left thigh. A September 1988 service
medical record shows that the veteran was playing
baseball/softball when he pulled a muscle in his left thigh.
In April 1989, he was treated for complaints of tightness and
pain. The veteran was seen in January 1990 seeking a medical
opinion as to whether he should undergo surgical
reconstruction and later decided not to pursue the option.
VA treatment records show that when the veteran was seen in
December 2002, he was diagnosed with left leg weakness.
In July 2006, the veteran underwent a VA examination. He
reported a muscle gap in the anterior portion of his leg. He
indicated that he could not do any heavy lifting because of
weakness in the left leg due to muscle deficiency. He
reported that he took Motrin even though he did not really
have any pain in his leg. He reported no flare-ups,
braces, surgery, or reinjury. His daily activities were only
affected as far as lifting, and his employment was not
affected by his left leg.
Physical examination of the left thigh revealed a rupture of
the medial aspect of the rectus femoris muscle. The examiner
noted that when the veteran contracted the rectus femoris,
the muscle bunched up in the center of his leg. The examiner
further noted that the veteran definitely had a muscle
deficiency in the center of his leg from a ruptured rectus
femoris. In addition, it was noted that the veteran had
decreased strength in both the extension of his lower leg and
in flexion. It was noted that he had normal extension and
flexion of the knee.
Based on the medical evidence, the preponderance of the
evidence is against assignment of a rating in excess of 10
percent. Service medical records do not show hospitalization
for a prolonged period for treatment of the disability, and
there are no indications on palpation of loss of deep fascia,
muscle substance, or normal firm resistance of muscles to
warrant a rating of 30 percent. Further, tests of strength
and endurance demonstrate no more than impairment of muscle
tonus and loss of power when compared to the sound side. In
sum, the muscle deficiency and decreased strength experienced
by the veteran are contemplated by the currently assigned 10
percent evaluation for this disability. Accordingly, a
higher evaluation is not for application.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have also been considered
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the status
post rupture, left rectus femoris (formerly rated as torn
Sartorius left leg muscle) has resulted in marked
interference with employment or necessitated frequent periods
of hospitalization. As the veteran noted in his July 2006 VA
examination, his employment was not affected by his left leg.
Under these circumstances, the Board finds that the veteran
has not demonstrated marked interference with employment so
as to render impractical the application of the regular
rating schedule standards. In the absence of such factors,
the Board finds that criteria for submission for assignment
of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.
App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In reaching these conclusions, the Board has considered the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the veteran's claim, that doctrine
is not applicable in the instant appeal. 38 U.S.C.A §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App.
49, 53-56 (1990).
ORDER
Entitlement to assignment of a 10 percent rating (but no
higher) for the veteran's right knee Baker's cyst is granted,
subject to the controlling regulations applicable to the
payment of monetary benefits.
Entitlement to an increased rating for status post rupture,
left rectus femoris is denied.
____________________________________________
J. K. BARONE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs